REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 66 OF 2007
Devender Kumar Tyagi & Ors. .............. Petitioners
versus
State of U.P. & Ors. ...........Respondents
WITH
WRIT PETITION (CIVIL) NO. 67 OF 2007
Jai Prakash Tyagi & Ors. .............. Petitioners
versus
State of U.P. & Ors. ...........Respondents
J U D G M E N T
H.L. Dattu, J.
1) The petitioners have filed this writ petition under
Article 32 of the Constitution of India, inter alia,
challenging the Notification dated 03.7.2006 issued under
Section 4 and the Notification dated 18.12.2007 issued under
Section 6 of the Land Acquisition Act, 1894 (hereinafter
referred to as "the LA Act") for acquiring their lands for a
planned development of the Leather City Project in order to
relocate bone mills and allied industries by invoking the
urgency provisions under Section 17(1) and 17(4) of the LA
Act.
2) This Court is monitoring the re-location of the bone
mills and allied industries in the various parts of State of
Uttar Pradesh including the district of Ghaziabad in the
public interest proceedings, which were initiated in the year
1994. Since then, this Court has time and again issued
various orders and directions including inspection of
polluting bone industries in Ghaziabad by the U.P. Pollution
Control Board (hereinafter referred to as "the UPPCB") and
Central Pollution Control Board (hereinafter referred to as
"the CPCB"). This Court, vide its Order dated 17.08.2004 in
the Civil Appeal No. 3633-3634 of 1999 (U.P. Pollution
Control Board v. Anil K. Karnwal & Ors.), which is still
pending before us, had directed the respondents to relocate
the bone mills and allied industries as per the
recommendations of the CPCB and further directed the
2
respondents to identify the definite area suitable for
relocation of the said industries. Pursuant to this Order, the
respondents had filed an affidavit before this Court in the
month of December, 2004, inter alia, proposing the Leather
City Project for relocation of the said bone industries.
3) In this backdrop, the respondents had issued a
Notification dated 03.7.2006 under Section 4 read with
Section 17 (4) of the LA Act for acquisition of 28.804
hectares of the land at village Imtori, Chitoli, Sabli of Hapur-
Pargana in the district of Ghaziabad for the public purpose of
planned development of the Leather City Project by
invoking the urgency provision under the LA Act, thereby,
dispensing with inquiry under Section 5-A of the LA Act.
The same was published in two daily Hindi newspapers on
04.07.2006. Subsequently, the English version of the said
Notification was also published in two daily newspapers
dated 24.01.2007. The relevant part of the Notification is
extracted below:
"The Governor is pleased to order the publication
of the following English translation of Notification
No. 1588/VIII-3-2006-183 LA-2005, dated July 03,
2006:
No. 1588/VIII-3-2006-183 LA-2005
3
Dated Lucknow, July 3, 2006
Under subsection (1) of section 4 of the Land
Acquisition Act, 1894 (Act No. 1 of 1894), the
Governor is pleased to notify for general
information that the land mentioned in the
schedule below is needed for the public purpose
namely, for construction of Leather City Scheme at
Villages-Chitoli, Sabli and Imtori, Pargana-Hapur,
district-Ghaziabad by the Hapur-Pilkhuwa
Development Authority, Hapur.
The Governor being of the opinion that provisions
of subsection (1) of section 17 of the said Act are
applicable to the said land in as much as the said
land is urgently required for construction of
Leather City Scheme at Villages-Chitoli, Sabli and
Imtori, Pargana-Hapur, district-Ghaziabad by the
Hapur-Pilkhuwa Development Authority, Hapur
under planned development Scheme, it is as well
necessary to eliminate to delay likely to be caused
by an enquiry under section 5-A of the said Act the
Governor is further pleased to direct, under
subsection (4) of section 17 of said Act, that the
provisions of section 5-A shall not apply."
4) Thereafter, the respondent had issued a Notification
dated 18.12.2007 under Section 6 read with Section 17 (1) of
the LA Act, whereby, it directed the Collector of Ghaziabad
to take possession of the said land on the expiry of 15 days
from the date of publication of the Notice under Section 9(1)
even though no award has been made under Section 11. The
same was published in two newspapers on 05.01.2008. The
relevant portion of the Notification is extracted below:
4
"The Governor is pleased to order the publication
of the following English translation of notification
No. 2647/VIII-3-2006-136L.A.-2006, dated
September 18, 2006:
No. 2647/VIII-3-2006-136L.A.-2006
Dated Lucknow, September 18, 2006
UNDER, sub-section (1) section 4 of the Land
Acquisition Act, 1894 (Act No. 1 of 1894) the
Governot is pleased to notify for general
information that the land mentioned in the schedule
below, is needed for a public purpose namely for
construction of planned Leather City scheme at
village Rampur, Paragana Hapur, District
Ghaziabad by the Hapur Pilkhuwa Development
Authority, Hapur.
2. The Governor, being of the opinion that
the proivision of sub-section (1) of section 17 of the
said Act are applicable to the said land in as much
as the said land is urgently required, for the
construction of planned Leather City scheme at
village Rampur, Paragna Hapur, District
Ghaziabad by the Hapur Pilkhuwa Development
Authority, Hapur under planned development
scheme, it is as well necessary to eliminate the
delay likely to be caused by an inquiry under
section 5A of the said Act. The Governor is further
pleased to direct under sub-section (4) of section 17
of the said Act that the provisions of section 5A of
the said Act shall not apply."
5) Since the Petitioners' land situated at Hapur is included in
these Notifications, the petitioners have filed present Writ
Petition under Article 32 of the Constitution praying for
issuance of appropriate writ or directions to quash these
5
Notifications issued under Section 4 and Section 6 of the LA
Act.
6) In this Writ Petition, the issues before us are :
I. Whether the Notification dated 18.12.2007 issued by the
respondents under Section 6 read with Section 17 (1) of the LA
Act is within the period of limitation as contemplated by
proviso (ii) to Section 6 (1) of the LA Act.
II. Whether the respondent is justified in invoking the urgency
provision under Section 17(1) and excluding the application of
Section 5-A in terms of Section 17(4) of the LA Act for
acquisition of the land for the development of the Leather City
Project.
7) Mrs. Pinky Anand, the learned senior counsel for the
petitioners, submits that declaration of Notification dated
18.12.2007 under Section 6 is beyond the period of limitation of
one year from the date of the publication of Notification under
Section 4, as mandated by proviso (ii) to Section 6(1) of the LA
Act. In other words, she submits that respondents had failed to
make the declaration of Notification under Section 6 within a
6
period of one year starting from the last date of publication of
Notification under Section 4 in two newspapers as contemplated
by Section 4(1) of the LA Act. The learned senior counsel would
argue that the publication of Notification under Section 4 in two
newspapers in the Hindi language on 04.07.2006 was sufficient
compliance of Section 4(1) of the LA Act in order to commence
the period of limitation for the purpose of proviso (ii) to Section
6(1) of the LA Act from the said date. In other words, she
contends that since the people residing at Hapur, Ghaziabad are
well conversant and acquainted with the Hindi language, the
publication of the Notification under Section 4 in two newspapers
in the Hindi language on 04.07.2006 duly fulfils the requirement
of the publication of the Notification as contemplated by Section
4(1) of the LA Act. Therefore, the period of limitation for
declaration of Notification under Section 6 would commence
from 04.07.2006 and not from the date of subsequent publication
of the said Notification under Section 4 on 24.1.2007. She
submits that the declaration of Notification dated 18.12.2007
under Section 6 by the respondents is made after the expiry of
one year and is beyond the period of limitation in terms of the
proviso to Section 6 (1) of the LA Act. In other words, the period
of limitation commences from date of completion of the
7
necessary requirement of publication as contemplated by Section
4(1) of the LA Act. She further submits that in view of this, the
acquisition proceedings are vitiated and should be set aside.
8) Per Contra, Shri. Pallav Sisodia, learned senior counsel for
the respondents, submits that the declaration of Notification
under Section 6 of the LA Act is well within the period of
limitation of one year starting from the date of the last publication
of the Notification under Section 4 of the LA Act, as mandated
by proviso to Section 6(1) of the LA Act. He further submits that
it is amply clear that the last date of publication of the
Notification under Section 4 would be treated as the date of
publication of the said Notification for all purposes in terms of
Section 4(1) of the LA Act. He states that the respondents, after
publishing the Notification under Section 4 on 4.07.2006 in the
regional language, that is, Hindi, had also published the said
Notification in English language on 05.01.2007. In this regard,
the learned senior counsel argues that the period of limitation of
one year in terms of proviso to Section 6(1) of the LA Act would
commence only from 05.01.2007, that is, the date of the last
publication of the Notification under Section 4 of the Act. He
further submits that the proviso to Section 6(1) refers only to the
8
declaration of the Notification under Section 6 within the period
of one year from the date of publication of the Notification under
Section 4 of the LA Act and not the publication of the declaration
under Section 6 (2). In other words, the proviso to Section 6(1)
whilst prescribing the period of limitation, only refers to the
declaration under Section 6, which is in the nature of order and
excludes the publication of the declaration from its ambit.
Therefore, the subsequent publication of declaration of
Notification under Section 6 will not be taken into consideration
in order to calculate the period of limitation in terms of proviso to
Section 6(1) of the LA Act. The learned senior counsel, in
support of his contention, has placed reliance on the decisions of
this Court in S.H. Rangappa v. State of Karnataka & Anr., (2002)
1 SCC 538 and Sriniwas Ramnath Khatod v. State of
Maharashtra & Ors., (2002) 1 SCC 689.
9) To appreciate the point in issue, it would be appropriate to
set out relevant portion of Sections 4(1) and 6 of the LA Act.
"4. Publication of preliminary notification and
powers of officers thereupon.--(1) Whenever it
appears to the appropriate Government that land in
any locality is needed or is likely to be needed for
any public purpose or for a company, a notification
to that effect shall be published in the Official
Gazette and in two daily newspapers circulating in
9
that locality of which at least one shall be in the
regional language and the Collector shall cause
public notice of the substance of such notification
to be given at convenient places in the said locality
(the last of the dates of such publication and the
giving of such public notice, being hereinafter
referred to as the date of the publication of the
notification).
* * *
6. Declaration that land is required for a public
purpose.--(1) Subject to the provisions of Part VII
of this Act, when the appropriate Government is
satisfied, after considering the report, if any, made
under Section 5-A sub-section (2), that any
particular land is needed for a public purpose, or
for a company, a declaration shall be made to that
effect under the signature of a Secretary to such
Government or of some officer duly authorised to
certify its orders and different declarations may be
made from time to time in respect of different
parcels of any land covered by the same
notification under Section 4 sub-section (1),
irrespective of whether one report or different
reports has or have been made (wherever required)
under Section 5-A sub-section (2):
Provided that no declaration in respect of any
particular land covered by a notification under
Section 4 sub-section (1),--
(i) published after the commencement of the
Land Acquisition (Amendment and Validation)
Ordinance, 1967, but before the commencement of
the Land Acquisition (Amendment) Act, 1984, shall
be made after the expiry of three years from the
date of the publication of the notification; or
(ii) published after the commencement of the
Land Acquisition (Amendment) Act, 1984, shall be
made after the expiry of one year from the date of
the publication of the notification:
10
Provided further that no such declaration shall be
made unless the compensation to be awarded for
such property is to be paid by a company, wholly or
partly out of public revenues or some fund
controlled or managed by a local authority.
2) Every declaration shall be published in the
Official Gazette, and in two daily newspapers
circulating in the locality in which the land is
situate of which at least one shall be in the regional
language, and the Collector shall cause public
notice of the substance of such declaration to be
given at convenient places in the said locality (the
last of the dates of such publication and the giving
of such public notice, being hereinafter referred to
as the date of the publication of the declaration),
and such declaration shall state the district or other
territorial division in which the land is situate, the
purpose for which it is needed, its approximate
area, and, where a plan shall have been made of
the land, the place where such plan may be
inspected.
(3) The said declaration shall be conclusive
evidence that the land is needed for a public
purpose or for a company, as the case may be; and,
after making such declaration, the appropriate
Government may acquire the land in manner
hereinafter appearing."
10) The Notification under Section 4 has to be published in the
manner laid down therein. As against this, under Section 6, a
declaration has to be first made and that declaration is then to be
published in the manner provided in Section 6(2) of the LA Act.
Also, the proviso (ii) to Section 6(1) lays down a time-limit
within which declaration has to be made. The said proviso (ii)
11
significantly only provides a time-limit for a declaration and not
for publication as it has been incorporated in sub-section (1) of
Section 6 of the LA Act.
11) It is not in dispute that the declaration of the Notification
under Section 6 was issued on 18.12.2007. It is also not in
dispute that the Notification under Section 4 was issued on
03.07.2006 and the same was published in two daily newspapers
in Hindi language on 04.07.2006 having circulation in the locality
where the land is situated. Also, the people at Pargana Hapur in
the Ghaziabad district are well conversant with the Hindi
language. In our considered view, the publication of the
Notification in two newspapers having circulation in the locality
where the land is situated and where people are well conversant
with Hindi amounts to ample compliance with the requirement of
the publication under Section 4(1) of the LA Act. In view of this,
the subsequent publication of English translation of the said
Notification under Section 4 in two newspapers on 05.01.2007 is
unnecessary and will not assist the respondents to extend the
period of limitation envisaged in the proviso to Section 6(1) of
the LA Act. Hence, the last date of publication for the purpose
Section 4(1) of the LA Act, which can be treated as date of
12
publication, is the date on which, the second Notification under
Section 4 was published in the newspaper, that is, 04.07.2006.
Therefore, the period of limitation commences from 04.07.2006,
which is the date of publication of the Notification under Section
4(1) of the LA Act. If the declaration under Section 6 of the LA
Act is made before the expiry of the period of one year starting
from 04.07.2006, then, only such declaration will be considered
as valid for the purpose of the acquisition of land. However, in
the present case, the declaration under Section 6 was issued on
18.12.2007 which is clearly beyond the period of limitation of
one year as mandated by the proviso to Section 6(1) of the LA
Act. Therefore, the declaration of Notification under Section 6
and its subsequent publications are clearly beyond the period of
limitation of one year starting from the date of publication of
Notification under Section 4 of the LA Act. In our opinion, due
to the aforesaid reasons, the reliance placed by Shri. Pallav
Sisodia, learned senior counsel for respondents, on the decisions
of this Court in S.H. Rangappa v. State of Karnataka & Anr.,
(2002) 1 SCC 538 and Sriniwas Ramnath Khatod v. State of
Maharashtra & Ors., (2002) 1 SCC 689 in support of his
contention that the proviso to Section 6(1) whilst prescribing
time-limit, contemplates and refers only to the date of declaration
13
and not publication under Section 6 of the LA Act will not come
to the rescue of the respondents.
12) The second point in issue before us is the invocation of the
urgency clause by the respondents to acquire the lands in dispute.
Mrs. Pinky Anand, learned senior counsel, submits that this Court
has issued direction to relocate the bone industries in Ghaziabad
vide its Order dated 17.08.2004, since then, the State Government
had not shown any kind of urgency and was only considering the
proposal of the Leather City Project in order to relocate the said
industries for public purpose as they were located in the dense
human habitation and causing environmental pollution and health
hazards. It was only in July, 2006 that the State Government had
issued the Notification under Section 4 on 3.7.2006, in
continuation with this, after the lapse of more than a year, the
State Government has issued Notification under Section 6 on
18.12.2007 by invoking urgency provision as contemplated by
Section 17(1) and 17(4) of the LA Act. In other words, the
lackadaisical attitude of the State Government since the direction
of this Court in 2004 nearly 2 years ago and in making the
declaration under Section 6 after the lapse of more than one year,
form the issuance of the Notification under Section 4 of the LA
14
Act does not exhibit or depict any kind of urgency but only
lethargy on their part in acquiring the lands. Therefore, the
urgency contemplated in the LA Act cannot be equated with
dereliction of responsibility on the part of the State Government.
The learned senior counsel contends that the respondents had
unnecessarily invoked the urgency provisions under
Section 17 (1) read with 17 (4) for the acquisition of the land for
construction of the Leather City Project in order to relocate the
said industries in view of the delay of two years in the issuance of
the Notification under Section 4 and delay of more than
seventeen months in making declaration under Section 6 from the
date of publication of the Notification under Section 4. The
learned senior counsel argues that the invoking of the urgency
provision under Section 17(4), which excludes the application of
the Section 5-A, by the respondents in the absence of any real
urgency as contemplated by Section 17 amounts to illegal
deprivation of the right to file objection and hearing of the
appellants and inquiry under Section 5-A of the LA Act. She
submits that an expropriatory legislation like the LA Act must be
given strict construction. She further submits that Section 5-A is a
substantial right and akin to fundamental right which embodies a
principle of giving of proper and reasonable opportunity to the
15
land loser to persuade the authorities against the acquisition of
their lands which can be dispensed with only in exceptional cases
of real urgency and not by side-wind. The learned senior counsel
also submits that the entire acquisition proceedings are vitiated as
the respondents have failed to obtain the approval of development
of the Leather City Project as a sub-regional plan under Section
19 of the National Capital Region Planning Board Act, 1985
(hereinafter referred to as "NCRPB Act"). She further submits
that such approval is mandatory in view of Section 27 of the
NCRPB Act, which has overriding effect on any other
inconsistent law or instrument.
13) Per contra, Shri. Pallav Sisodia, learned senior counsel for
respondents, submits that the bone mills and allied industries
were causing environmental pollution and health hazards to the
public at large in the district of Ghaziabad. This Court has issued
directions to relocate the said industries in accordance with the
recommendation of the CPCB. The State Government, in strict
compliance of the Order of this Court dated 17.08.2004, acquired
the lands for construction of the Leather City Project by invoking
the urgency provisions under Section 17 of the LA Act. He
further submits that in view of the said urgency, the State
16
Government had issued a Notification dated 3.4.2006 under
Section 4 of the LA Act for the acquisition of the said land for
public purpose of urgent construction of the Leather City Project
by invoking Section 17(4) of the LA Act in order to eliminate
delay likely to be caused by enquiry under Section 5-A of the LA
Act. The same was published in Hindi and English in two daily
newspapers on 4.03.2006 and 24.01.2007, respectively.
Subsequently, the State Government had issued the Notification
dated 18.12.2007 under Section 6 read with Section 17(1) of the
LA Act and published it in the newspapers dated 5.01.2008. The
learned senior counsel submits that there is no lethargy or
negligence on the part of the State Government to acquire the
said land. He contends that the construction of the Leather City
Project, in view of the pollution of environment caused by these
industries as observed by this Court, is an urgent matter requiring
acquisition of the land by invoking the urgency provisions under
Section 17(1) and Section 17(4), thereby, dispensing with the
enquiry under Section 5-A of the LA Act. The learned senior
counsel, by placing reliance on the decision of this Court in Jai
Narain and Ors. v. Union of India, (1996) 1 SCC 9, would argue
that the invoking of the urgency provisions is justified in a
situation where the entire acquisition proceedings are initiated in
17
compliance with the series of directions of this Court, which itself
indicates the existence of urgency in acquiring the land for
relocating the polluting industries. He further contends that the
right of the land owner for filing of objections and opportunity of
hearing under Section 5-A are subject to the provisions of Section
17 and the same can be legally curtailed in the event of any
pressing need and urgency for the acquisition of land in order to
eliminate delay likely to be caused by an enquiry under Section
5-A of the LA Act. The learned senior counsel further submits
that the Hapur Pilkhuwa Development Authority (hereinafter
referred to as "the HPDA") vide its resolution dated 19.04.2005,
has authorized the National Capital Region Planning Board
(hereinafter referred to as "the NCRPB") to prepare master plan
for Hapur containing the Leather City Project termed as Sub-
regional plan. Subsequently, the NCRPB in June, 2009, issued
draft Sub-regional plan but without indicating the Leather City
Project. Thereafter, the HPDA has made series of requests dated
27.08.2009, 18.08.2010 and 22.04.2011 to the NCRPB to include
the Leather City Project in its Sub-regional plan. The respondents
are keenly awaiting reply to these requests and hence, the grant of
approval is still pending. Arguendo, the learned senior counsel
submits that the Leather City Project pending approval of the
18
NCRPB will not adversely affect the acquisition of the Land in
any manner in view of the presence of the Chief Coordinator
Planner of the NCR Cell, Ghaziabad in almost all the meetings
wherein the Leather City Project has been discussed and
deliberated upon as he is a nominated member of the HPDA
Board vide the Government Order and the Office Memo dated
08.06.2004 and 26.05.2011, respectively, amounts to implied
consent or approval of the NCRPB.
14) We have heard the learned counsel for the parties before us.
The second point in issue before us is no more res integra as it
has already been decided by this Court in Radhy Shyam v. State
of U.P. (2011) 5 SCC 553, to which one of us was the party (G.S.
Singhvi, J.), wherein this Court has considered the development
of the jurisprudence and law, with respect to invoking of the
urgency provisions under Section 17 vis-`-vis right of the
landowner to file objections and opportunity of hearing and
enquiry under Section 5-A, by reference to a plethora of earlier
decisions of this Court. This Court had culled out the various
principles governing the acquisition of the land for public
purpose by invoking urgency thus:
19
"77. From the analysis of the relevant statutory
provisions and interpretation thereof by this Court
in different cases, the following principles can be
culled out:
(i) Eminent domain is a right inherent in every
sovereign to take and appropriate property
belonging to citizens for public use. To put it
differently, the sovereign is entitled to reassert its
dominion over any portion of the soil of the State
including private property without its owner's
consent provided that such assertion is on account
of public exigency and for public good --
Dwarkadas Shrinivas v. Sholapur Spg. and Wvg.
Co. Ltd., Charanjit Lal Chowdhury v. Union of
India and Jilubhai Nanbhai Khachar v. State of
Gujarat.
(ii) The legislations which provide for compulsory
acquisition of private property by the State fall in
the category of expropriatory legislation and such
legislation must be construed strictly -- DLF
Qutab Enclave Complex Educational Charitable
Trust v. State of Haryana, State of Maharashtra v.
B.E. Billimoria and Dev Sharan v. State of U.P.
(iii) Though, in exercise of the power of eminent
domain, the Government can acquire the private
property for public purpose, it must be
remembered that compulsory taking of one's
property is a serious matter. If the property
belongs to economically disadvantaged segment of
the society or people suffering from other
handicaps, then the court is not only entitled but is
duty-bound to scrutinise the LA Action/decision of
the State with greater vigilance, care and
circumspection keeping in view the fact that the
landowner is likely to become landless and
deprived of the only source of his livelihood and/or
shelter.
(iv) The property of a citizen cannot be acquired by
the State and/or its agencies/instrumentalities
without complying with the mandate of Sections 4,
5-A and 6 of the LA Act. A public purpose,
however, laudable it may be does not entitle the
State to invoke the urgency provisions because the
20
same have the effect of depriving the owner of his
right to property without being heard. Only in a
case of real urgency, the State can invoke the
urgency provisions and dispense with the
requirement of hearing the landowner or other
interested persons.
(
v
)
Section 17(1) read with Section 17(4) confers
extraordinary power upon the State to acquire
private property without complying with the
mandate of Section 5-A. These provisions can be
invoked only when the purpose of acquisition
cannot brook the delay of even a few weeks or
months. Therefore, before excluding the
application of Section 5-A, the authority concerned
must be fully satisfied that time of few weeks or
months likely to be taken in conducting inquiry
under Section 5-A will, in all probability, frustrate
the public purpose for which land is proposed to be
acquired.
(vi) The satisfaction of the Government on the
issue of urgency is subjective but is a condition
precedent to the exercise of power under Section
17(1) and the same can be challenged on the
ground that the purpose for which the private
property is sought to be acquired is not a public
purpose at all or that the exercise of power is
vitiated due to mala fides or that the authorities
concerned did not apply their mind to the relevant
factors and the records.
vii) The exercise of power by the Government
under Section 17(1) does not necessarily result in
exclusion of Section 5-A of the LA Act in terms of
which any person interested in land can file
objection and is entitled to be heard in support of
his objection. The use of word "may" in sub-
section (4) of Section 17 makes it clear that it
merely enables the Government to direct that the
provisions of Section 5-A would not apply to the
cases covered under sub-section (1) or (2) of
Section 17. In other words, invoking of Section
17(4) is not a necessary concomitant of the
exercise of power under Section 17(1).
21
(
viii
)
The acquisition of land for residential,
commercial, industrial or institutional purposes
can be treated as an acquisition for public
purposes within the meaning of Section 4 but that,
by itself, does not justify the exercise of power by
the Government under Sections 17(1) and/or 17(4).
The court can take judicial notice of the fact that
planning, execution and implementation of the
schemes relating to development of residential,
commercial, industrial or institutional areas
usually take few years. Therefore, the private
property cannot be acquired for such purpose by
invoking the urgency provision contained in
Section 17(1). In any case, exclusion of the rule of
audi alteram partem embodied in Sections 5-A(1)
and (2) is not at all warranted in such matters."
15) In view of the above it is well settled that acquisition of land
for public purpose by itself shall not justify the exercise of power
of eliminating enquiry under Section 5-A in terms of Section 17
(1) and Section 17 (4) of the LA Act. The Court should take
judicial notice of the fact that certain schemes or projects, such as
the construction of the Leather City Project for public purpose,
which contemplate the development of residential, commercial,
industrial or institutional areas, by their intrinsic nature and
character require the investment of time of a few years in their
planning, execution and implementation. Therefore, the land
acquisition for said public purpose does not justify the invoking
of urgency provisions under the LA Act. In Radhy Shyam
(Supra), this Court, whilst considering the conduct or attitude of
the State Government vis-`-vis urgency for acquisition of the
22
land for the public purpose of planned industrial development in
District Gautam Budh Nagar, has observed:
"82. In this case, the Development Authority sent
the proposal sometime in 2006. The authorities up
to the level of the Commissioner completed the
exercise of survey and preparation of documents by
the end of December 2006 but it took one year and
almost three months for the State Government to
issue notification under Section 4 read with
Sections 17(1) and 17(4). If this much time was
consumed between the receipt of proposal for the
acquisition of land and issue of notification, it is
not possible to accept the argument that four to five
weeks within which the objections could be filed
under sub-section (1) of Section 5-A and the time
spent by the Collector in making enquiry under
sub-section (2) of Section 5-A would have defeated
the object of the acquisition."
16) Moreover, in Dev Sharan & Others v. State of U.P. (2011)
4 SCC 769, the acquisition of land for the construction of a new
district Jail by invoking urgency provision under Section 17 was
quashed on the ground that the government machinery had
functioned at very slow pace after issuance of the Notification
under Section 4 in processing the acquisition proceedings which
clearly evinces that there was no urgency to exclude the
application of Section 5-A of the LA Act. This Court observed:
"35. From the various facts disclosed in the said
affidavit it appears that the matter was initiated by
23
the Government's Letter dated 4-6-2008 for
issuance of Section 4(1) and Section 17
notifications. A meeting for selection of a suitable
site for construction was held on 27-6-2008, and
the proposal for such acquisition and construction
was sent to the Director, Land Acquisition on 2-7-
2008. This was in turn forwarded to the State
Government by the Director on 22-7-2008. After
due consideration of the forwarded proposal and
documents, the State Government issued Section 4
notification, along with Section 17 notification on
21-8-2008. These notifications were published in
local newspapers on 24-9-2008.
36. Thereafter, over a period of 9 months, the State
Government deposited 10% of compensation
payable to the landowners, along with 10% of
acquisition expenses and 70% of cost of
acquisition was deposited, and the proposal for
issuance of Section 6 declaration was sent to the
Director, Land Acquisition on 19-6-2009. The
Director in turn forwarded all these to the State
Government on 17-7-2009, and the State
Government finally issued the Section 6
declaration on 10-8-2009. This declaration was
published in the local dailies on 17-8-2009.
37. Thus the time which elapsed between
publication of Section 4(1) and Section 17
notifications, and Section 6 declaration in the local
newspapers is 11 months and 23 days i.e. almost
one year. This slow pace at which the government
machinery had functioned in processing the
acquisition, clearly evinces that there was no
urgency for acquiring the land so as to warrant
invoking Section 17(4) of the LA Act.
38. In Para 15 of the writ petition, it has been
clearly stated that there was a time gap of more
than 11 months between Section 4 and Section 6
notifications, which demonstrates that there was no
urgency in the State action which could deny the
petitioners their right under Section 5-A. In the
counter which was filed in this case by the State
24
before the High Court, it was not disputed that the
time gap between Section 4 notification read with
Section 17, and Section 6 notification was about 11
months.
17) In the facts and circumstances of the present case, it is clear
that this Court, vide its Order dated 17.08.2004, has issued a
direction to the respondents to relocate the bone mills and allied
industries causing environment pollution and health hazards as
per the recommendations of the CPCB and, inter alia,
respondents were also directed to identify the area for relocation.
Pursuant to this, respondents have filed an affidavit in the month
of December, 2004 specifying the construction of the Leather
City Project at Hapur in Ghaziabad. Subsequently, it was only
after the lapse of two years, the State Government had issued a
Notification under Section 4 on 03.07.2006 and the same was
published on 04.7.2006. Thereafter, the State Government took
more than 17 months in order to make a declaration of the
Notification under Section 6 from the date of publication of the
Notification under Section 4 of the LA Act. In view of the above
circumstances, it is crystal clear that the government functionary
has proceeded at very slow pace at two levels, that is, prior to the
issuance of the Notification under Section 4 and post the issuance
25
of the Notification under Section 4, for acquisition of the land for
construction of the Leather City Project, which undoubtedly is a
public purpose. Therefore, the above series of the events amply
exhibit the lethargical and lackadaisical attitude of the State
Government. In the light of the above circumstances, the
respondents are not justified in invoking the urgency provisions
under Section 17 of the LA Act, thereby, depriving the appellants
of their valuable right to raise objections and opportunity of
hearing before the authorities in order to persuade them that their
property may not be acquired.
18) Shri. Pallav Sisodia, learned senior counsel for
respondents, heavily relied on Jai Narain and Ors. v. Union of
India (Supra) in support of his contention that the acquisition
proceedings were initiated under the directions of this Court
which itself recognized the existence of urgent situation to
relocate polluting industries. We are afraid that this decision will
not come to the rescue of the respondents. In that case, this Court
had monitored the setting up of sewage treatment plant and also
directed the Delhi Administration to acquire land on war footing
mentioning urgent situation of supply of pure water and avoiding
any health hazards. The said urgency pointed out by this Court
26
was duly reciprocated by the Delhi Administration by issuing a
Notification under Section 4 and subsequently, a Notification
under Section 6 of the LA Act within a time period of 2 months.
19) The directions or orders issued by this Court must be abided
by within the four corners of the legal framework and statutory
provisions. The State Government is not allowed to transgress the
express legal provisions and procedure thereunder in the garb or
guise of implementing our guidelines or directions. The
directions of this Court are issued with a purpose and the said
purpose is supposed to be followed in the realm of legal structure
and principles. Therefore, the respondents are not justified in
invoking the urgency provisions of the LA Act in an arbitrary
manner by referring to our earlier directions as a defense for their
illegal and arbitrary act of acquiring land without giving an
opportunity of raising objections and hearing to the petitioners in
terms of Section 5-A of the LA Act.
20) Admittedly, the respondents had not obtained the approval of
the NCRPB for construction of the Leather City Project as Sub-
regional plan in terms of Section 19 (2) of the NCRPB Act. The
purpose or aim of the NCRPB Act is to provide for co-ordinated,
harmonized and common plan development of the National
27
Capital Region at the central level in order to avoid haphazard
development of infrastructure and land uses in the said region,
which includes the district of Ghaziabad in the Uttar Pradesh.
Under this Act, the NCRPB has been constituted with the Union
Minister for Urban Development as the Chairperson and the
Chief Ministers of Haryana, Rajasthan and Uttar Pradesh and Lt.
Governor of Delhi as its members in order to undertake the task
of development of the National Capital Region. The object of the
NCRPB is to prepare, modify, revise and review a regional and
functional plan for the development of said region and, further, to
co-ordinate and monitor its implementation. Section 19(1)
mandates the State government or Union Territory to submit their
sub-regional plan to the NCRPB for examination in order to
ensure that it is in conformity with the regional plan. Once the
NCRPB affirms the conformity of the said plan with regional
plan, only then the State government can finalize it. Thereafter,
the State Government is entitled to implement the Sub-regional
plan by virtue of Section 20 of the NCRPB Act. In M.C. Mehta
v. Union of India, (2004) 6 SCC 588, this Court has discussed the
purpose and overriding effect of the NRCPB Act thus:
"27. The National Capital Region Planning Board
Act, 1985 (for short "the NCR Act") was enacted to
28
provide for the constitution of a Planning Board for
the preparation of a plan for the development of the
National Capital Region and for coordinating and
monitoring the implementation of such plan and for
evolving harmonised policies for the control of land
uses and development of infrastructure in the
National Capital Region so as to avoid any
haphazard development of that region and for
matters connected therewith or incidental thereto.
The areas within the National Capital Region are
specified in the Schedule to the NCR Act. The
National Capital Region comprises the area of
entire Delhi, certain districts of Haryana, Uttar
Pradesh and Rajasthan as provided in the
Schedule. "Regional plan" as provided in Section
2(j) means the plan prepared under the NCR Act
for development of the National Capital Region and
for the control of land uses and the development of
infrastructure in the National Capital Region. What
the regional plan shall contain is provided in
Section 10. Section 10(2) provides that the regional
plan shall indicate the manner in which the land in
the National Capital Region shall be used, whether
by carrying out development thereon or by
conservation or otherwise, and such other matters
as are likely to have any important influence on the
development of the National Capital Region..."
28. Section 27 provides that the provisions of the
NCR Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law
for the time being in force or in any instrument
having effect by virtue of any law other than the
NCR Act; or in any decree or order of any court,
tribunal or other authority."
21) In Ghaziabad Development Authority v. Delhi Auto &
General Finance (P) Ltd., (1994) 4 SCC 42, this Court has
considered the overriding effect of the NCRPB Act over the UP
29
Urban Planning and Development Act, 1973, in relation to the
conversion of land user by State of UP which was not in
consonance with the Regional Plan approved by the NCRPB for
the National Capital Region, by virtue of Section 27 read with
Section 29 of the NCRPB Act. This Court, after referring to
various provisions and analysing the scheme of the NCRPB Act,
has observed thus:
"16. The four villages in question in which the
lands of Delhi Auto and Maha Maya are situate
form part of the U.P. Sub-Region of the National
Capital Region. In the master plan of 1986
operative till 2001 A.D. (Annexure I) the lands of
Delhi Auto and Maha Maya are included in the
area set apart for `recreational' use only. On this
basis the Regional Plan was prepared and
approved under the NCR Act on 3-11-1988 and
finally published thereunder on 23-1-1989
according to which the area in question was set
apart for `recreational' use only. Admittedly no
change in this Regional Plan to alter the land use
of that area to `residential' purpose was made any
time thereafter in accordance with the provisions of
NCR Act. The overriding effect of the NCR Act by
virtue of Section 27 therein and the prohibition
against violation of Regional Plan contained in
Section 29 of the Act, totally excludes the land use
of that area for any purpose inconsistent with that
shown in the published Regional Plan. Obviously,
the permissible land use according to the published
Regional Plan in operation throughout, of the area
in question, was only `recreational' and not
residential since no change was ever made in the
published Regional Plan of the original land use
shown therein as `recreational'. This being the
situation by virtue of the overriding effect of the
30
provisions of NCR Act, the amendment of land use
in the master plan under U.P. Act from
`recreational' to `residential' at an intermediate
stage, which is the main foundation of the
respondents' claim, cannot confer any enforceable
right in them. However, if the first amendment in
the master plan under the U.P. Act altering the
land use for the area from `recreational' to
`residential' be valid, so also is the next amendment
reverting to the original land use, i.e.,
`recreational'. Intervening facts relating to the
private colonisers described as planning
commitments, investments, and legitimate
expectations do not have the effect of inhibiting the
exercise of statutory power under the U.P. Act
which is in consonance with the provisions of the
NCR Act, which also has overriding effect and lays
down the obligation of each participating State to
prepare a Sub-Regional Plan to elaborate the
Regional Plan at the Sub-Regional level and holds
the concerned State responsible for the
implementation of the Sub-Regional Plan. The
original land use of the area shown as
`recreational' at the time of approval and
publication of the Regional Plan under the NCR
Act having remained unaltered thereafter, that
alone is sufficient to negative the claim of Delhi
Auto and Maha Maya for permission to make an
inconsistent land user within that area."
22) In Sheikhar Hotels Gulmohar Enclave v. State of Uttar
Pradesh, (2008) 14 SCC 716, this Court has allowed the
invocation of the urgency clause by the State Government for the
widening of the National Highway in the National Capital Region
in the light of completion of the procedural requirement of
31
approval of the master plan of the U.P. Government by the
NCRPB. This Court observed thus:
"9. Traffic congestion is a common experience of
one and all and it is very difficult to negotiate the
traffic congestion in Delhi and National Capital
Region. Therefore, in the present situation, it
cannot be said that the invocation of Section 5-A
was for ulterior purpose or was arbitrary exercise
of the power. Since the master plan has already
been prepared and it has been approved by the
Planning Board and they have sanctioned a sum of
Rs 20.65 crores for the development of this
Transport Nagar and widening of National
Highway 91 into four lanes. Therefore, the
proposal was approved by the Board and it got the
sanction from the National Capital Regional
Planning Board and ultimately the Government
invoked the power under Section 17(4) read with
Section 5-A of the LA Act dispensing with the
objections. In the light of these facts it cannot be
said that invoking of power was in any way an
improper exercise. There is need for decongestion
of traffic and it is really the dire need of the hour
and earlier it is implemented, the better for the
people at large."
23) In the facts and circumstances of the present case, the
respondents, vide its resolution dated 19.04.2005, had authorized
the NCRPB to prepare Sub-regional plan of construction of the
Leather City Project at Hapur in the district of Ghaziabad for the
HPDA. Subsequently, the NCRPB issued a draft Sub-regional
plan, wherein the Leather City Project was not mentioned. The
32
respondents had made several requests to NCRPB to include
Leather City Project but no reply granting approval has come in
terms of Section 19(2) of the NCRPB Act. Section 19 of the
NCRPB Act contemplates the grant of approval by the NRCPB,
and finalization by the State Government, of the Sub-Regional
Plan if it is in consonance and consistent with the Regional Plan
for the National Capital Region. Furthermore, Section 29 of the
NCRPB Act contemplates that the State Government shall not
undertake any development activity, which is inconsistent with
the Regional Plan for the National Capital Regional. Also,
Section 27 of the NCRPB Act has overriding effect on any other
inconsistent law or instrument. The overall scheme of the
NCRPB Act contemplates common plan, coordination and
harmony in the formulation of policy of land uses and
development of infrastructure in the National Capital Region.
Therefore, in our opinion, the acquisition of land in the absence
of express approval in terms of Section 19 and operation of
Section 27 of the LA Act renders the entire acquisition
proceedings illegal and hence vitiated.
24) In view of above discussion, we hold that the declaration of
Notification dated 18.12.2006 under Section 6 of the LA Act is
33
beyond the period of limitation as envisaged by proviso to
Section 6(1) of the LA Act. We also hold that the State
Government was not justified, in the facts and circumstances of
this case, to invoke the urgency provision of Section 17(4) of the
LA Act. Therefore, the appellants cannot be denied of their
valuable right under Section 5-A of the LA Act.
25) In the result, the Writ Petitions are allowed. The impugned
Notification dated 03.7.2006 under Section 4 and Notification
dated 18.12.2006 under Section 6 of the LA Act are hereby
quashed. Costs are made easy.
...............
............J.
[G.S. SINGHVI ]
...........................J.
[H.L. DATTU ]
New Delhi,
August 23, 2011.
34
